Choice of law clause
Written by Michael Coyle on 13 June 2011« Return to Reading Room
Does it matter where your case is heard?
I am often asked whether a client can apply the laws of England and Wales in the event of a dispute. For example what happens if one party wishes Scottish law to apply but our client wants English law to apply? The only party that can apply the choice of court is a court of course. However any court will be persuaded to exercise their power if you have sought to address this via your terms of business in the event of a dispute. Ultimately where a case is heard is important as it will have a significant impact on how the case is conducted, the level of costs, the level of control you have over the case and finally whether you win or lose! The law is based on two sets of rules. The first concerns how English and Welsh law has developed over the years ie the traditional approach and the second concerns how Europe interprets the laws of jurisdiction. One would need to consider the traditional rules when we are concerned with defendants domiciled outside Europe. If in Europe then we need to invoke the European laws.
Where there is a clause that expressly deals with disputes and choice of forum a court will uphold the clause in the absence of a strong reason for not doing it.
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